Appeal Court judge Lord Justice Lewison earlier this month handed down a judgment which appears to seriously curtail applicants’ ability to alter existing permissions without making a fresh application.
Section 73 of the 1990 Town and Country Planning Act allows developers to apply to alter a condition attached to a planning permission without incurring the expense and risk of submitting a new full application. An earlier High Court ruling on the case in question, Finney vs Welsh Ministers, last year approved the use of s73 applications to vary not just planning conditions, but also the description of the permission itself. This Appeal Court decision overturns that, with "very significant" implications for developers, according to Karen Cooksley, partner at law firm Winckworth Sherwood.
The case concerns plans by developer Energiekontor for a 100 metre-high wind turbine in Wales. Energiekontor made a s73 application to increase the turbine height to 125m, despite this requiring not only alteration to a planning condition, but also to the description of the scheme in its permission, which had specified "a tip height of up to 100 metres".
Last year’s High Court judgment on the case, following a challenge to the approval, ruled that alterations to the permission itself were allowable under s73, as long as they didn’t represent a "fundamental alteration" of the original permission.
However, on 5 November Lord Justice Lewison ruled that there is no statutory power under s73 to alter the description of a planning permission, meaning any applications seeking to do this cannot be approved. Under section 73, he ruled, "the planning authority must ‘consider only the question of conditions’." He said: "The natural inference from that imperative is that the planning authority cannot use section 73 to change the description of the development."
Simon Kelly, associate at Richard Buxton Solicitors, which commonly acts for those challenging developments, said it was "sensible judgement which helps ensure some element of certainty both for developers and the wider public."
Barrister Ben Fullbrook of Landmark Chambers, who acted for the appellant, said: "It’s fair to say there’s been a bit of confusion among practitioners in recent years as to what is allowed under s73, and this provides clarity." Jamie Beagent, partner at law firm Leigh Day, which also acted for the appellant, said it meant developers could no longer "misuse" s73 to force through material changes to permissions. "This dubious tactic will now be removed from a developer’s armoury," he said.
However, David Hardy, partner at law firm Squire Patton Boggs, who acted for the developer, said the judgment was a "hard-line interpretation" of s73, which "will have a real impact on delivery of housing and complex projects which are bound to include tweaking." Until now, he said, s73 had been "a very useful tool, used week in, week out" by developers seeking to get schemes constructed in changing circumstances. "In my experience, it is the section 73 schemes which get built," he said, adding that Energiekontor is considering whether to seek leave to appeal the decision with the Supreme Court.
The ruling does not stop s73 applications being used to make "minor material" changes to permissions, but it makes clear those changes are only possible where they don’t entail altering the description of the development. Alex Ground, partner at law firm Russell-Cooke, estimated that rules out anything between 20 and 30 per cent of existing s73 applications.
Hence, Winckworth Sherwood’s Cooksley says the practice has been inundated with calls from developers on the issue since the "very difficult" ruling was made. "Our three planning partners have for the last week been advising on very little else," she said. Matthew White, head of planning at Herbert Smith Freehills, said a number of its clients had asked to review their planning strategies in light of the "disappointing" judgment.
While existing permissions gained under s73 more than six weeks previously should be protected by the statute of limitations around appeals, Landmark Chambers’ Fullbrook said planning authorities and developers should immediately start assessing s73 applications in train to see if they are affected. "Authorities should undertake a review and developers should be aware that their permissions could be unlawful and vulnerable to challenge," he said.
In his ruling, Lord Justice Lewison said developers affected by the judgment could make Section 96A applications to change a permission’s description. However, many developers remain unconvinced by this idea, largely because s96A covers only non-material changes, whereas s73 allows for "minor material changes". In practice this means that, while s73 applications have often been used to change the number of homes or quantum of commercial space in an application, s96A applications to change the same details in a permission’s description are unlikely to be accepted. David Hardy said: "Section 96A will not be available in virtually all cases because the amendment will be material."
Lawyers said they were now advising developers to put only vague or non-prescriptive information in the description of planning applications, instead specifying details in conditions. However, it is not yet known if planning authorities will accept this. Herbert Smith Freehills’ White, for one, said that he expected authorities to resist this: "A lot of planning authorities want to see the detail in a description because that is what they use for consultation purposes," he said. Russell-Cooke’s Ground said authorities were able to "unilaterally change the description of the planning application when they register it, and often do", meaning the description may not be in applicants’ control anyway.
The legal options for developers wanting to alter permissions
Section 73 of the 1990 Town and Country Planning Act allows developers to apply to alter a condition attached to a permission without submitting a new full application. Last year the High Court ruled that changes to the description of the permission itself were also allowable under s73, as long as they didn’t fundamentally alter the original permission. November’s Appeal Court judgment overturned that ruling. This means that, although s73 can still be used to make "minor material" changes to permissions, these must not entail altering the description of the development.
Section 96A of the Act allows a planning authority to make non-material changes to a permission. The Appeal Court judge pointed out that s96A would provide an alternative option to developers wanting to change a permission’s description, but prevented from doing so under s73 by his ruling. But commentators say that many permission changes that would previously have been permissible under s73 would be seen as too "material" for consent under s96A.